How Does the Court Choose Who Gets What in a Divorce?

Separation is not an easy process; frequently, it can seem worse when the court system is involved. The divorce process can be long and arduous, and a lot of it is centered around the court system. The court system, unfortunately, is set up in a way that gives men an edge over women, especially in custody disputes. And, to avoid court at all costs, many divorcing spouses will try to play the system in their favor, jumping the gun and making decisions they think the court system will give them rather than the decisions they really want to.

When someone gets divorced, there are several things that the court will decide:

  • What property will be divided?

  • Who gets custody of the children?

  • Who pays alimony?

In addition, the court will make decisions related to retirement funds, healthcare benefits, and property shared during the marriage. The laws regarding divorce are complicated, but the court still has to follow certain guidelines when making these decisions, such as selecting an equitable outcome.

The Parties’ Earning Capacity

The jury will consider the sides’ revenue from all references. This includes salary, self-employment income, dividend payments, rent, common stock income, and any pension payments. The court will take into account both potential income and actual income.

Prospects for the Future

The court is not restricted to assets acquired jointly or during the marriage. For example, the court can consider a party’s interest in an inheritance settlement (generally only if the donor has died).

Non-Marital Assets

Non-marital assets, or separate property, are owned and controlled by the spouse who acquired them before the marriage to a spouse. A non-marital asset can be real or personal property, like a car, house, bank account, stocks, bonds, a life insurance policy, or retirement account. These assets are considered separate property because one individual legally owns them before the marriage. During a divorce, separate property can typically be divided between spouses under state property laws.

The Needs of the Parties

And while spousal support may be allocated to support a spouse if they cannot support themselves, the primary consideration is how to divide the marital estate between the parties. The marital estate is all assets accumulated during the marriage, including savings, retirement accounts, business interests, real estate, and any personal property owned by either spouse, such as furniture, jewelry, or automobiles.

Ages of the Parties and Marriage Duration

If you are entering divorce or civil union or considering it, you may assume that the person with the least money will get the most. However, this is not always true, and the court has a great deal of discretion in determining who gets what when the divorcing parties cannot agree. In determining who gets what, the court will look at the ages of both spouses, the marriage’s length, and the spouses’ earning capacities.

Contributions to the Family

Divorce is one of the hardest times in a person’s life. Not only does it involve the painful process of ending a marriage, but it also involves dealing with issues such as child custody, alimony, dissipation of assets, division of property in Maryland (or elsewhere, depending on where the case is taking place), and a lot more. While each person’s situation is unique and should be considered on a case-by-case basis, some factors tend to play a role in determining who gets what.

Misconduct of the Parties

Divorces are never easy, and this is true whether they involve married couples or unmarried couples living together. Unfortunately, divorce often comes with unexpected financial consequences. Often, one party will sue the other for alimony or child support, and in extreme cases of misconduct, one party may sue the other for adultery. The divorce may be based on that rather than the parties’ financial situation.


When it comes to alimony and property awards, judges have wide discretion to apply the law according to defined criteria. Judges often seek to balance the best interests of children, including the financial well-being of a former spouse. The court’s eventual decision usually depends on a number of factors, including the length of the marriage, the parties’ incomes and assets, and the general standard of living. The final judgment is legally binding, and the court has no authority to modify it – even upon subsequent appeal.

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